Children’s Bill: deliberations

Social Development

29 May 2005
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Meeting Summary

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Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
30 May 2005
CHILDREN’S BILL: DELIBERATIONS

Chairperson:
Ms J Tshivhase (ANC)

Documents handed out
Chapter 1: Interpretation, objects, application and implementation of Act
Chapter 21 and further
Amended Bill: May 2005
Children's Bill [(B70-2003) Reintroduced]

SUMMARY
The Committee revisited amendments previously proposed, particularly in respect of the referral of children to Children’s Courts by other courts. A social worker would first be required to investigate any matter, and that the court would then become involved.

The provisions for disclosure of the entry of a name in Part B of the Register were again discussed. An offence was created for a person who failed to disclose that his or her name had been entered on the Register. Further provisions allowed for the person managing or operating an institution working with children to establish whether the name of an existing worker appeared on Part B of the Register, and allowed twelve months for the Department to respond to this enquiry. The drafters clarified the provision for consent to medical treatment of a child, and noted the amended wording.

The Committee examined the definitions in Chapter 1. Some amendments were requested, and the definition of "father" was debated in some detail.

At the end of the meeting, the Committee was informed that the Deputy Minister of Justice had provisionally put the Department of Justice’s involvement on hold, as he was concerned about the cost implications of the Bill. The Committee resolved to seek an urgent meeting with the Deputy Minister, and to report the delay to the Speaker.

MINUTES

The Chairperson expressed the Committee’s condolences on the death of Mr Morwamoche’s son.

Ms R van Zyl (South African Law Reform Commission) noted that the Department of Justice would revert to the Committee the following day, and would then introduce some changes to matters already discussed.

Clause 47: Referral of children to children’s court by other courts
Subclause (2) was changed to include an investigation by a designated social worker, instead of just the outcome of an inquiry by the children’s court.

Dr M Mabetoa (Department of Social Development) explained that this Clause had a bearing on the children’s court chapter, and that, if it was accepted, a similar change would have to be made in the children’s court chapter.

Ms van Zyl informed the Committee that the drafters were hoping to have a meeting with the Department of Justice to ensure that all other amendments were in line with the Children’s Courts chapter. Some changes had been made that would impact on that Chapter.

Clause 124: Disclosure of entry of name in Part B of Register
Subclause (2) was inserted as discussed by the Committee.

Clause 126: Establishment of information in Part B of Register
Subclause (2) had been introduced to impose a duty on managers of facilities, a designated child protection organisation and the South African Police Service, to enquire about the listing of a staff member on Part B of the National Child Protection Register with regard to existing staff.

Subclause (5) was inserted to give a timeframe for the Director-General to respond to inquiries about whether or not a person’s name appeared in Part B of the National Child Protection Register.

Subparagraph (a) related to a manager’s enquiry about new staff, subparagraph (b) to existing staff, and subparagraph (c) to a person’s own name.

Discussion
Ms C Dudley (ACDP) asked whether the timeframes stipulated were reasonable.

Ms van Zyl replied that, as indicated during the discussion, there would be people currently working in these facilities whose names might have been entered on the Register, and that this was not covered at present. In line with the Sexual Offences Register, a shortcoming was identified, and an additional duty was being imposed on the managers of the institution to also enquire with regard to its existing staff, and this was the reason for the 12-month period. This might run into millions of people in respect of whom enquiries would now have to be made. It was anticipated that, near the end of that period, the Department would be flooded by enquires. The Department had indicated that they felt six months was a reasonable reply period. It would be a once-off. After that, the normal arrangements would prevail.

Ms Dudley asked whether this had been found acceptable. A query should not take twelve months. A three-month period for requests would be more appropriate.

Ms A Johaar (State Law Advisor) remarked that it could be changed to three or six months. In her opinion, regardless of the time given, enquiries would flood in in the last week of the last month.

Ms Dudley emphasised that this was a very important point, as children were vulnerable. She strongly recommended the use of three months.

Ms van Zyl replied that there would probably have to be a campaign to make managers and owners of facilities aware of the need to make the enquiry. The period could be reduced to within a six-month period, but anything shorter than that would make it difficult for the Department to reach everyone. There would be hundreds of thousands of applications. Six months would be a compromise, and then the whole process should be completed within a year.

Mr B Solo (ANC) recommended the retention of twelve months on behalf of the majority party. This was seconded by Ms Makasi (ANC).

Ms S Rajbally (MF) suggested that there may have been a reason for the twelve-month period, and suggested it not be cut fine so that the work was done haphazardly. There was a good reason for this period to be in the Bill.

Clause 127: Disclosure of names in Part B of Register prohibited
As agreed, subclause (3) had been inserted to impose an obligation on the Director-General to inform a person when their name was entered on the Register.

Clause 128: Removal of name from Register
The Committee had already discussed this, and it related to the particulars of a person convicted of an offence more than once. It provided that that person’s name could not be removed from the Register. There had been debate on whether a person convicted of several offences during one hearing would fall into this category. It was hoped that this wording covered that concern.

Discussion
Ms Johaar requested time to consider the wording.

Part 3: Protective measures relating to health of children

Clause 129: Consent to medical treatment and surgical operations
A distinction was made between which persons should give what consent. Consent to medical treatment was more open and the distinction was clearly drawn in subclauses (4) and (5). An objection had been raised to the use of "does not have the mental capacity" and it was proposed to replace that by "is unable".

Subclause (7) had been amended to name the Minister, rather than the Head of the Department, as this was currently the situation. "Physically or mentally" had been deleted, and the wording was now simply "incapable".

Subclause (8) was amended for accuracy of cross-references.

Discussion
Mr M Waters (DA) asked why social implications had been included, citing the example of the stigma attached to HIV/AIDS treatment.

Ms van Zyl replied that this had been in the Clause since the Law Reform Commission version.

Mr Waters asked for an example of how it would impact on a child.

Mr Solo remarked that, when the Committee had looked into the changes, it had felt that "social" was appropriate, as this was one of the factors that had to be considered. If a person was HIV-positive and there was a need for a guardian or parent to play a role, those social implications would be taken into consideration.

Ms van Zyl gave the example of someone suffering from cancer, and undergoing chemotherapy, where the child might not want to have the chemotherapy as their hair might fall out. This concerned a child that was unable to appreciate the social impact that that decision might have; in other words a child that could not appreciate that the treatment was more important than the possible drawbacks. In such a case, there would have to be assistance by a guardian.

Mr L Nzimande (ANC) concurred with Mr Solo, and felt it added to one of the measures of scope for examination of the best interests.

Mr Waters asked for clarity on subclause (5), and whether a child in foster care or in a place of safety would require the consent of the Minister, querying its feasibility.

Ms van Zyl replied that, when it came to treatment, a caregiver could give consent. The caregiver could not give consent for a surgical operation. This was no change from the current situation.

CHAPTER 9: CHILD IN NEED OF CARE AND PROTECTION

Part 1: Identification of child in need of care and protection

Clause 150: Child in need of care and protection
A problem in the wording in the clause had been raised by the Children’s Institute. This had been addressed in subclause (1)(a). The mere fact of abandonment or being orphaned did not immediately render a child in need of care and protection.

Subclause (2) had been amended, particularly in respect of unaccompanied foreign children. The issue was whether the child was an unaccompanied foreign child, and the two previous subclauses had been merged. A provision was added for a child who was a victim of trafficking.

Discussion
Mr Solo remarked that there had been significant rewording of subclause (2), and asked for the background to this.

Ms van Zyl replied that there was a move from the version in the current Bill, but it was not a very big shift from the previous amendment. The Department of Labour had indicated that, when they found children involved in child labour, they were unable to deal with the children. A child who was a victim of child labour was not necessarily a child in need of care and protection. It was felt there might be circumstances where an investigation should be conducted, where a child might be in need of care and protection. This was that list.

Clause 151: Removal of children to temporary safe care by court order
The Department had requested that instead of in all instances referring a child straight to the Children’s Court, the Bill should formally include the obligation for the matter to go first to the social worker for investigation. In discussions, it had been realised that all cases referred for investigation should be somewhere centrally on record. This would ensure that cases did not fall through the cracks, and would also assist with statistics. The lack of statistics also caused problems when the Department needed to request funding from the Treasury. It had thus been decided that whenever a child was investigated by a social worker, the matter would have to be reported to the relevant province. That record would also serve as a source of information for Part A of the Child Protection Register. Whenever a matter was dealt with via a children’s court, they would also have a record. This was one of the amendments to this Clause.

The wording in subclause (3) was amended, as a decision was no longer at issue, but a referral.

Subclause (7) had been amended to accord with the requirement for reporting.

Clause 152: Removal of children to temporary safe care without court order
A similar provision had been inserted in subclauses (2)(c) and (3)(c).

Discussion
Mr Solo noted some redundancy in the reference to the "relevant provincial department of Social Development".

Ms van Zyl replied that it had to be a report to the provincial department in whose area this matter had taken place.

Clause 153: Written notice to alleged offender

The reporting requirement would be inserted accordingly.

Discussion
Dr Mabetoa noted that it was quite revolutionary for the Department to have such statistics.

Ms H Weber (ANC) asked whether there was any provision compelling the police to know of every institution in their area that catered for children, as she had encountered a problem with this in her constituency.

Ms van Zyl replied that the police had indicated that there should be something in the Bill where there was an approval of trustworthy persons in the community, such as priests or chiefs, so that, if a child had to be removed in an emergency, there was somewhere to go. This would be a temporary place of safety. This fell under the Section 76 Bill, however, in the Chapter on alternative care. There would then have to be liaison between the police and the Department of Social Development.

Dr Mabetoa concurred with Ms van Zyl, and said that, ideally, there should be a database, electronic or paper-based, where all officials dealing with children could have access to organisations assisting children. In the meantime, each province had an inter-sectoral committee that exchanged information. The police had a database of the service providers to children within the province, or the district.

Mr Solo noted that the community had a role to play, as some of these things could be channelled through the police forum. He recommended that Ms Weber channel this problem to the forum, so that it could be addressed.

Ms van Zyl noted that this could be referred to the SAPS head office, so that if a particular police station was unaware of resources, it might indicate a communication gap within the police.

Ms A Muller (Department of Social Development) noted that social workers usually had approved places of safety. There should be liaison between the police and the social workers.

Clause 154: Other children in need of care and protection
This had originally stated that, if a child was removed, then a sibling of that child should also be investigated. During discussions, it was noted that this should be extended to a child in the same place or on the same premises.

The reporting requirement was inserted in subclause (b), but it would only be applicable to the person under whose care the child was.

Part 2: Children’s court processes

Clause 155: Decision of question whether child is in need of care and protection
This was a very important clause, because it inserted the obligation on a social worker to investigate the matter.

The reporting requirement was inserted in subclause (2)(b), as it was usually an NGO social worker who would investigate the matter.

Discussion
Mr Waters referred to a debate on the use of "control" and asked what had happened to the debated provision.

Ms van Zyl replied that this had been deleted. Officials from the Department had explained that, if a child was removed as an emergency measure and was later found not to be in need of care and protection, the social worker could always refer the matter to the court.

Dr Mabetoa suggested subclauses 155(5)(iii) and (iv) be amended to read "care" instead of "control".

Clause 231: Persons who may adopt child
A new subclause (3) had been inserted.

Subclause (6) had been amended in light of the changes to the position of biological fathers in respect of their parental responsibilities and rights. When a father had guardianship he had to give consent to the child’s adoption anyway.

Discussion
Mr Waters confirmed that ‘fathers’ would be defined.

Clause 228: Register on Adoptable Children and prospective Adoptive Parents
The previous subparagraph (3) had been removed, but the drafters would check the wording. When a child was adopted, that child’s information had to be removed from the Register. It was important that the information of a prospective adoptive parent was not removed once they had adopted a child, although they could request that the Department remove it.

Clause 248: Access to adoption register
There had been a problem with the wording of subclause (4) and this had been amended.

Clause 249: No consideration in respect of adoptions
The final wording in subclause (2) had been amended according to the Committee’s instructions.

Subparagraph (b) was amended to remove "reasonable".

Clause 250: Only certain persons allowed to provide adoption services
Ms van Zyl noted that there had been discussion on the definition of adoption services, which would be addressed in the definitions.

Subclause (2) had been amended to provide for the rendering of services by lawyers.

CHAPTER 16: INTER-COUNTRY ADOPTIONS

Clause 254: Purposes of chapter

Subclause 254(c) had been amended so that "suitable" was replaced by "fit and proper".

Clause 257: Central Authority
When the Department of Justice had addressed the Committee, they had raised the concern that they should be consulted on inter-country adoptions. The agreement was an amendment to subclause (2).

Clause 258: Delegation of functions
After discussion within the Committee, it appeared that a child protection organisation that performed inter-country adoptions did not necessarily have to be designated, but did have to be accredited. Subparagraph (2)(b) had been amended accordingly.

Clause 260: Entering into adoption working agreements
The term "designated" had been omitted as previously discussed.

Clause 293: Abortion
The Clause dealt with surrogate motherhood. Subclause (2) was amended. The Committee had felt that it would be unfair to impose such an obligation on the professional, but that the obligation should be imposed on the surrogate mother.

Other matters
The Committee voted to debate the Bill on Thursday 23 June and this would be discussed in the Programme Committee.

Mr Solo noted that the Committee did not have a researcher, and that this had contributed to the slow process of the Bill. There had been a need for a committed researcher. This was a substantive Bill and as much support as possible had been required.

The Committee commenced the full reading of the Bill.

CHAPTER 1: INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION OF ACT

Clause 1: Interpretation
The Committee agreed to the definitions of abuse, adopted child, adoption compliance certificate, adoption register, adoption social worker, adoption working agreement, adoptive parent and alternative care.

"artificial fertilisation"
Ms Rajbally asked for clarity on whether this was surrogate motherhood.

Ms Johaar explained that this was provided for in the section on parental responsibilities and rights.

"care"
Mr Nzimande asked what was intended by "within available means" and to whom it referred.

Mr P du Preez (Department of Social Development) replied that it meant that, if you could afford it, you could do it; if you were unable to afford it, you could not do it.

Ms van Zyl replied that care was a component of parental responsibilities and rights. The definition tried to cover all aspects of the relationship between parents and children that involved looking after children and taking care of them. Any parent could only provide for a child what he was able to afford. The drafters had also proposed to revert to "care" throughout the Bill. She asked whether they should add "where appropriate, includes", in the definition? For example, in relation to an unmarried father, he might not be the one providing the place to live, but might be providing the necessary financial support.

Dr Mabetoa explained that "available means" was a safeguard from subparagraph (b). If the family was homeless and unable to care for the child and the child was exposed to abuse, the child would be removed from the family. The line provided for situations where the child would not have to be removed because the family was poor.

Mr Godi (PAC) referred to subparagraph (c), where it spoke to protection of the child against a variety of abuses, and suggested the inclusion of "emotional", unless it was covered elsewhere.

Mr Solo supported the Department in the need for available means, because there was a need for realism. He concurred on the insertion of emotional.

Ms van Zyl responded that emotional was included in the definition of neglect, which was included in this definition. Protection of a child from neglect and abuse included protection against emotional harm. It could be inserted expressly however.

Mr Godi responded that neglect also referred to physical, so this seemed confusing.

Dr Mabetoa suggested that it had been covered under the objects of the Act, but had been added elsewhere. If it were added there, it would have to be changed in all other areas where the same sentence was used.

Ms Dudley remarked that Mr Godi had pointed out that physical was also covered elsewhere, and suggested that emotional could only add to the Bill, and should be inserted.

Mr du Preez agreed to effect the change. It would be changed throughout the Bill for consistency.

"care-giver"
The new definition would be introduced to the Committee that afternoon.

"child"
Mr Solo remarked that Lawyers for Human Rights had argued to widen the definition to "any child under the age of 18 years regardless of nationality" and asked whether the Department had considered this.

Ms van Zyl replied that this had come from the issue that the Act had previously not specifically referred to foreign unaccompanied children and refugee children. When dealing with Chapter 2, the Department had proposed that refugee and foreign children be included under the general principles. Mr Masutha had asked whether they were in all parts, and it had been agreed that these children should be addressed under children in need of care and protection. Specific provision was made there.

The Committee accepted the definitions of Child Care Act, clerk of the children’s court, commercial sexual exploitation, commissioning parent and convention country.

"contact"
Ms Dudley asked whether "regular" would raise a legal issue in (b), suggesting that contact should be left as contact.

Mr du Preez replied that it definitely made a difference. If no provision was made for a regular basis, you could have contact once a year, but a court would interpret regular as at least once a month.

"court"

Discussion

Mr du Preez noted that the definition would be changed.

Ms van Zyl remarked that, when the drafters had gone through the Bill, this was not the case, and had agreed to use a general definition of court, and where children’s court specifically, in the context would say that, for example. Technically it was not accurate here. She recommended that this be deleted.

The Chairperson asked whether it was only the service rendered that was different.

Ms Dudley asked whether there would be a definition for children’s court, or whether it would be omitted entirely.

Ms van Zyl replied that there would be liaison with the Department of Justice, but that this definition was inaccurate. It may have been true in the Law Reform Commission version, but much had been changed. If the Department of Justice felt it necessary to have a definition of court, the commonly used definition would be inserted.

The Committee agreed to the definitions of delegation, department, designated social worker, Director-General, Divorce Act, divorce court and family advocate.

"early childhood development programmes"
This would be removed, and be placed in the Section 76 Bill.

"early childhood development services"
This would be removed, as for early childhood development programmes.

"exploitation"
There had been a change to this definition, and this would be dealt with that afternoon.

"family member"
Subparagraph (c) had been deleted.

Discussion
The Chairperson asked whether it had been agreed to retain parental power.

Ms van Zyl replied that it had been agreed that "parental power" was not used in legislation, but was a term used in legal textbooks and common law. This was no longer used. This Bill used parental rights and responsibilities, and this would be used throughout.

Ms W Newhoudt-Druchen (ANC) asked whether this would cover children who were adopted.

Ms van Zyl replied that children who were adopted were already included, because the definition of parent included an adoptive parent.

The Committee agreed to the definitions of gamete, Hague Convention on Inter-country Adoption and Hague Convention on International Child Abduction.

"guardian"
This definition had been changed.

"guardianship"
This definition had been changed in line with the change to "guardian".

"high court"
Ms Weber asked if this definition was to be retained if "court" was being deleted.

Ms van Zyl proposed that "children’s court" be defined instead of a generic definition.

The Committee agreed to the definitions of in need of care and protection, labour inspector, Maintenance Act, marriage, MEC for social development, Mediation in Certain Divorce Matters Act, mental illness, Minister, neglect, organ of state, parent and parental responsibilities and rights.

"medical practitioner"
Mr Waters asked why dentists had been singled out.

Ms van Zyl replied that dentists fell into one of the classes of persons who had to report child abuse.

"parent-substitute"
This definition would be deleted because the term was no longer used. The Clause had been redrafted.

"partial care"
This would also be deleted, as it formed part of the Section 76 Bill.

"partial care facility"
This definition would be deleted, as per the definition of partial care.

"party"
Subparagraph (d) would be deleted.

"primary care-giver"
This definition had been deleted.

The Committee agreed to the definitions of police official, prescribed, presiding officer, provincial department of social development, provincial head of social development, psychologist, regulation, serve, sexual abuse, social service professionals and social worker, surrogate motherhood agreement, this Act, traditional authority and UN Protocol to Prevent Trafficking in Persons.

"residential care programme"
This definition would be moved to the Section 76 Bill

"surrogate mother"
Ms Dudley asked why there was a definition of artificial fertilisation, and whether this was not being handled differently.

Ms Johaar replied that, if a concept was defined for the first time in another Act, a reference to it that way was adequate.

Ms Dudley suggested that artificial fertilisation and surrogate mother might thus not need to be defined.

Ms Johaar replied that to her knowledge surrogate mother was not defined in another piece of legislation.

Ms Dudley suggested that it would in any case apply to artificial fertilisation.

Ms Johaar replied that it had been defined in the Human Tissue Act but this had been repealed in its entirety by the Health Act, so the definition had been reinstated here. This would be the only definition on the statute books.

"temporary safe care"
This definition had been changed, and the changes would be discussed.

"traffic"
Ms Johaar reminded the Committee of the change to this definition. All amendments to definitions would be brought before the Committee in the afternoon.

Discussion
Mr Waters raised the need for a definition of "permanent life relationship", asking whether this would be covered under the new definition of father.

Ms van Zyl replied that it should not be necessary to define it, because there would have to be an evaluation of the circumstances to determine whether it was a permanent relationship. It was already used in the adoptions chapter. The words were common English usage, and the decision would be a judgement based on particular circumstances.

CHAPTER 1: INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION OF ACT
Mr du Preez introduced the revised amendments to Chapter 1.

Clause 1: Interpretation
"abandoned"
The definition had been inserted and taken from the Section 76 Bill.

"care"
The drafters had inserted "where appropriate" as discussed

"care-giver"
"Biological or adoptive" had been deleted and the definition now referred to any person other than a parent.

Further amendments were the deletion of subparagraph (e) and a change to subparagraph (f).

Discussion
Mr Waters asked whether this would include a person who was head of a child and youth care facility, as it referred to temporary safe care. What about more permanent care?

Mr du Preez referred to the first part of the definition. It would include the more permanent care, under "includes". In other words, this was not an exhaustive list.

Ms Muller asked whether the Committee wanted a direct reference to it as it was not stipulated.

Ms Johaar noted that technically it was included. It was just not part of the broader definition.

"child labour"
The Chairperson asked whether this covered children being used as sex workers.

Mr du Preez replied that this would fall into subparagraph (a).

"children’s court"
The definition was inserted, with a cross reference to Clause 42.

"contribution order"
The definition had been brought back from the Section 76 Bill.

"court"
The definition had been deleted.

"exploitation"
The definition had been amended to include debt bondage or forced marriages.

"Commercial" had been deleted from sexual exploitation.

"family member"
The reference to primary care-giver of the child had been deleted, and "or cousin" inserted.

"father"
A new definition had been inserted.

"guardianship"
The definition contained a cross reference to Clause 18, and subparagraphs (a) – (c) had been deleted as duplication.

"illegal foreign child"
A new definition had been inserted.

Discussion
Mr Solo asked why there was a need for this definition. Surely a child was a child, and his presence in South Africa could be beyond his control.

Mr Masutha replied that the Department of Home Affairs had informed the Department about the categories they used for people that entered the country. There were a number of concepts, one of which was an unaccompanied foreign minor. It could only be a parent who brought the child illegally into the country that would make the situation of the child illegal. Surely the fact of being an unaccompanied foreign minor would already put the child within the ambit of the Act? The fact that the child was unaccompanied meant something was wrong and necessitated the intervention of Social Services. If the child were here illegally and with the parents, there would be no need for a particular arrangement for the child as the child would go with the parents. It was only if a child for any reason was in a position of vulnerability that that would become an issue, and thus need a definition. He concurred with Mr Solo on the need for clarity on the definition.

Mr Waters mentioned Clause 150, which also mentioned illegal foreign children and asked what would happen if a child was trafficked. Surely that would make the child an illegal foreign child as well? This provision limited entry by themselves or by their parents, and should be broadened to "by any person".

Ms Dudley suggested that it might be a misprint, and should be an unaccompanied foreign child.

Mr Masutha noted that, in any case, in response to Mr Waters’s comment, whether the child had been legal or otherwise, if the child was unaccompanied, then she would fit squarely within the provisions of a child in need of care. If the child was accompanied, whether illegally in the country or otherwise, the fact of the child’s being accompanied put her outside the frame of child in need of care.

The issue was flagged.

"National Child Protection Register"
A new definition had been inserted.

"parent"
Subparagraph (a) regarding the biological father of a child conceived through rape was deleted.

Discussion
Ms Dudley expressed confusion at the deletion.

Ms Johaar suggested that biological father was deleted, but (b) and (c) of father were also (a) and (b) of parent, so the definition of father might not be required.

Mr Masutha noted that anything would be defined for a purpose and asked the reasoning behind the definition of a father.

Mr Waters reminded the Committee that it had been decided that unmarried fathers, if in permanent relationships, should be given full parental responsibilities and rights.

Mr Masutha cautioned that the drafters should first check whether the term had been used anywhere in the Bill, and if so, whether the use necessitated its definition.

Ms van Zyl replied that parent and father were the same thing, but that sometimes the word father was used on its own. It made sense to have the part relating to the rape of the child’s mother under the definition of father. She would confer with the State Law Advisor in respect of the wording.

Mr Waters asked why subparagraph (a) was being deleted under ‘parent’. Ms van Zyl replied that it had been moved to the definition of father as it was more relevant there. It could be returned to parent, however. It would be safer to leave it there. The principle was that the drafters wanted to include a definition of father. It might be useful to cross-reference.

Ms Newhoudt-Druchen asked why incest and rape were included in the definition of father, but only rape had been included in the definition of parent.

Mr Masutha suggested that subparagraph (a) had been deleted because "parent" could not refer to one of the spouses exclusively.

Ms Dudley disagreed, feeling that "parent" would apply to either a father or a mother. A rapist could get rights under the definition of parent.

Mr Masutha replied that, contrary to this concern, this would not happen because the term "parent" was not being defined positively. By implication, father and mother were assumed to be generally known as constituting a parent. Under the definition of father, the Bill was expressly saying that this person should not be assumed to be a father. If a person was not a father then he was not a parent. The definition of a father went on to exclude people, which automatically meant that they were not parents.

Ms Johaar suggested that father be defined as a father in relation to the child, and in addition that there should be an extra requirement that it not be the result of incest. Ms van Zyl replied that that had been an oversight.

Mr Masutha suggested that whether the child was born out of rape or incest, the father would not be a father for the purposes of this Act. The Committee’s recommendation was that "father" should not be confined to excluding fathers who raped but should include children born out of an incestuous relationship.

Ms van Zyl requested that the issue be re-examined, saying that the drafters would revert the next day after considering all the implications of defining father in relation to parent.

The Department of Home Affairs had given the definition of illegal foreign child to the drafters, but the Clause had been amended, and the Bill now referred to an unaccompanied foreign child. It might not even be necessary to define a foreign child as the expression "unaccompanied foreign child" would adequately cover it. This was agreed.

"medical practitioner"
The courts chapter referred to reports submitted by medical practitioner to the courts. Dentists would become important in relation to forensics, and had thus been specifically included.

"organ of state"
A small mistake had been made in this definition, and subparagraphs (a) and (b) had to be deleted. Section 239 of the Constitution contained more than one subparagraph (a) and (b) so the definition should refer only to Section 239.

"care-giver"
In respect of a care-giver, Ms van Zyl noted that paragraph (d) of the definition of primary care-giver should be inserted into the definition of care-giver. The Committee had specifically requested that this be retained when the definition of primary care-giver had been deleted.

Dr Mabetoa replied that a manager appeared more appropriate, and noted that in the public hearings, the child and youth care workers association wanted to be included in that definition as a caregiver. Would it be possible to have both?

Ms van Zyl recommended that they be included separately. She noted that the care-giver was not the child minder. The care-giver had certain rights, such as consent to the medical treatment of a child. Should all child and youth care workers have this power? In relation to a child and youth care centre, should it just be the manager?

Dr Mabetoa replied that, in a child and youth care centre, it should be the manager. Workers on a community level should be included, or they might not take their work seriously. They might not be sufficiently responsible if they were not included in the legislation.

Ms van Zyl confirmed that a care-giver would include "the manager or operator of a child and youth care centre", and the child and youth care worker outside a centre. The definition would have to be re-drafted and the drafters would revert the following day.

Mr Solo suggested that the Department should reword the definition, taking into consideration all of the above.

"parental responsibilities and rights"
The plural was used instead of the singular.

On the issue of child labour, the Department of Labour had disagreed with the current definition of child labour. It was being brought in because it was referred to in Clause 150(2), although it fell under the Section 76 Bill.

"parent substitute"
The definition had been deleted as the term was no longer used in the Bill.

"partial care and partial care facility"
This definition had been deleted, because it was in the Section 76 Bill.

"party"
Subparagraph (d) had been deleted.

"person unsuitable…"
This definition had been added, as the Section 75 Bill would include the chapter on the National Child Protection Register.

"primary care-giver"
The definition was deleted, but some provisions would be retained in the definition of "care-giver".

"removal of body parts"
This definition was introduced as a result of amendments to the trafficking chapter. There would be a reference to the National Health Act, as this was the appropriate legislation.

"residential care programme"
This term was used in the courts chapter, and would be retained.

"respondent"
This definition was returned to the Section 75 Bill, as contribution orders had been returned.

"school"
This definition had been reinserted from the Section 76 Bill.

"temporary safe care"
A minor technical amendment had been made, with the insertion of "an approved".

"trafficking"
Discussion

Mr Diko referred to the last line of paragraph (a)(i), and expressed concern that trafficking had been made to appear generic.

Ms van Zyl confirmed that it should read: "having care of a child". When the State Law Advisor reviewed this, the fine tuning would be addressed.

CHAPTER 21 AND FURTHER

Clause 298: Offences
Subparagraphs (1)(r) and (s) had been inserted, as per Friday’s discussion.

Subclause (3) had been amended, following the discussion in respect of people who should protect a child, or who were guilty of abusing or deliberately neglecting a child. The Bill currently only made it an offence if they abused or deliberately neglected the child. This had been reworded.

Subclause (4) might be misleading, and medical assistance had been substituted for medical aid.

The wording of subclause (5) had been approved by the Committee the previous Friday.

Subclause (7) had been added, since the trafficking chapter included a clause that effectively doubled the sentence.

Discussion
Mr Solo asked for clarity on subclause (3).

Ms van Zyl agreed that the word "or other person" should be added.

Mr Solo referred to the overcrowding in prisons, and said that he sometimes read in the papers that magistrates were not happy with prescribed sentences. Would this not worsen the situation in the prisons?

The Chairperson replied that she appreciated the overcrowding, but it was a phenomenon that the state had to deal with. To say that people who committed serious offences against young children should not be sent to prison if they repeatedly did that for twenty years exchanged morality for convenience.

Ms Rajbally asked what would happen if the person was sentenced to 20 years for the first offence.

Ms van Zyl explained that magistrates did not complain about maximum sentences, but about the cases where there was a minimum sentence. For example in the rape of a child, there was a minimum of 10 years, so they did not have the discretion to impose a lesser sanction. This Clause imposed a maximum. These were offences in terms of this Act, so for a first offence you could not be sentenced to more than 10 years. Only when an offender was convicted for a second or third time could he be sentenced for longer. For all practical purposes, a sentence of life imprisonment meant twenty years.

Clause 297: Inspection of child and youth care centres, partial care facilities, shelters and drop-in centres
Subclause (3)(a)(iii) had been amended to broaden it beyond "municipal".

299: Regulations
The wording in subparagraph (2)(a)(i) had been checked. It had been questioned whether it would be constitutional for the Minister to make Regulations that would apply only in a specific area, and this had been amended to "category of areas".

Clause 305: Agency agreements
Concern had been expressed about the use of the terms "assign" and "delegate" here. The State Law Advisor had looked into the matter, and into legislation containing similar provisions, and the Clause had been redrafted.

CHAPTER 18: TRAFFICKING IN CHILDREN

Clause 283: Assistance to children who are victims of trafficking
Subclause (3) stated that an adult person "may" be authorised to escort a trafficked child. This would have cost implications. The drafters had discussed the implications with the Department and they had suggested as a second option stating "must" authorise if in best interests of the child.

Mr Waters reiterated that there should not be a discretion. If "must" were inserted, it would have to be budgeted for.

Ms Stuurman suggested "must … if it is essential in the best interests of the child". This was agreed.

Clause 284: Trafficking in children prohibited
It had been felt that "person" would be confusing, as there was a need to specifically establish the liability of a juristic person or partnership.

Clause 289: Repatriation of trafficked children
It had been suggested that subclause (1) change "may" to "must".

Subclause (2) had also referred to "may", and this was to be amended to align with the previous subclause.

Discussion
Mr Waters suggested that subclause (2) should also allude to or suggest trafficking. Ms Stuurman agreed to change that accordingly.

Dr Mabetoa informed the Committee that the Department of Justice had noted that it would be unable to present to the Committee on the following day. The Deputy Minister was withholding the courts chapter until he was satisfied that it did not have major financial implications. The chapter had been approved by Cabinet, and was with the Committee, so the matter was in their hands.

Mr Solo expressed concern that the Committee would be blamed for the further delays. The Department of Justice had been aware of the issue for a number of years and were now delaying the process. The matter should be raised with the Speaker.

The Chairperson suggested that the issue was not being taken sufficiently seriously by the Department of Justice. The work had to continue.

Mr Godi suggested that a formal decision be taken that the Chairperson should seek an audience with the Deputy Minister on a formal level.

Ms Rajbally felt that the attention of the Speaker should be drawn to the issue as well.

Dr Mabetoa noted that there had not yet been written notice of the delay.

Ms van Zyl suggested that the Department should go through the courts chapter that night to ensure that it was in line with other amendments to the Bill. Members had raised some issues on the Bill.

The Chairperson asked whether the Minister had been informed of the Department of Justice’s concerns. Dr Mabetoa replied in the negative, as it had been thought the Committee should deal with the issue.

Mr Solo reverted to Mr Godi’s proposal and agreed that the Chairperson should make arrangements to meet with the Minister, but that the Committee should not move away from approaching the Speaker.

It was agreed that the Bill should have a Preamble.

The meeting was adjourned.

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